Obama administration reins in FBI’s NSL-related gag orders

The Obama administration's decision not to ask the Supreme Court to review a …

The Obama administration has opted not to ask the Supreme Court to review an appeals court decision that put some important restrictions on the FBI's handling of its controversial and much-abused national security letters (NSLs). The administration's decision will force the FBI to justify to a judge the gag orders that it routinely slaps on the targets of NSLs.

When the Patriot Act was originally passed in 2001, it contained a provision that enabled the FBI to issue a gag order to the target of an NSL. Given that national security letters are essentially subpoenas that don't require a warrant (these are controversial in their own right), the fact that the gag order no longer required a warrant meant that the FBI could demand data from an ISP and then instruct the company not to talk about it.

About five years ago, one target of an NSL and gag order approached the ACLU for representation, kicking off what has now morphed into Doe v. Holder (the case has since gone through various names as the attorney general has changed over the years). The most recent development in the case happened last year, when an appeals court ruled that the government must demonstrate the need for any NSL-related gag order to a judge, and in the process the order must meet a higher First Amendment standard than that defined in the original Patriot Act legislation.

The court's ruling ultimately shifts the burden of justifying the gag order onto the government, where it was previously up to the target of the gag order to challenge it in court under procedures set out in a later amendment to the Patriot Act.

"The next step is for the government to drop the unwarranted and unconstitutional gag on Doe," said Melissa Goodman, a staff attorney with the ACLU National Security Project. "At this point it's clear that the gag order serves no legitimate purpose."

The ACLU suggests that the underlying FBI investigation that prompted the NSL and the gag order may well be over, hence the irrelevance of the gag order that the FBI continues to enforce. It's also the case that the FBI withdrew the original request for information that prompted the gag order in the first place. At this point, it's not clear whose interest is being served by the FBI's continued enforcement of the gag order.